Judge: Michael E. Whitaker, Case: 21STCV29704, Date: 2023-03-20 Tentative Ruling

Case Number: 21STCV29704    Hearing Date: March 20, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

            Plaintiff Rama Reddy (Plaintiff) sued Defendant Damian Issaid Leon (Defendant) for a motor vehicle accident.

            Defendant moves the Court to reopen discovery and augment expert designation.  Plaintiff opposes the motion.  Defendant replies.

ANALYSIS

The initial trial date in the action was set for February 8, 2023.  (See Standing Order re Personal Injury Procedures, Central District issued on September 7.)  “The 30-day and 15-day “cut-offs” are measured from the first date set for trial of the case. A continuance or postponement of the trial does not operate to reopen discovery proceedings.”  (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 8:450 (citing Code Civ. Proc., § 2024.020, subd. (b) & Pelton-Shepherd Indus., Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1575, fn. 10.) 

On January 23, 2023, the Court continued the trial to May 4, 2023 and ordered that all discovery remains closed per the trial date of February 8, 2023.  (See January 23, 2023 Minute Order.) 

“The purposes of California's discovery statutes are well known. They are intended, among other things, to assist the parties and the trier of fact in ascertaining the truth; to encourage settlement by educating the parties as to the strengths of their claims and defenses; to expedite and facilitate preparation and trial; to prevent delay; and to safeguard against surprise.  We must construe the statutes time limitations in a way which is consistent with the overall purposes of discovery cited above.”  (Beverly Hosp. v. Superior Court (1993) 19 Cal.App.4th 1289, 1294–1295 [cleaned up].)  “The purpose of the expert witness discovery statutes is to give fair notice of what an expert will say at trial. This allows the parties to assess whether to take the expert's deposition, to fully explore the relevant subject area at any such deposition, and to select an expert who can respond with a competing opinion on that subject area. Indeed, the need for pretrial discovery is greater with respect to expert witnesses than ordinary fact witnesses because the opponent must prepare to cope with the expert's specialized knowledge. The Legislature responded to this need by enacting detailed procedures for discovery pertaining to expert witnesses.”  (Cottini v. Enloe Medical Center (2014) 226 Cal.App.4th 401, 416 [cleaned up].) 

1.     REOPENING OF DISCOVERY

            “On the motion of any party, the court may grant leave to … reopen discovery after a new trial date has been set.  This motion shall be accompanied by a meet and confer declaration under Section 2016.040.”  (Code Civ. Proc., § 2024.050, subd. (a).)  

In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including but not limited to the following:  ¿ 

(1) The necessity and the reasons for the discovery.¿ 

(2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier.¿ 

(3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party.¿ 

(4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.

(Code Civ. Proc., § 2024.050, subd. (b).)¿ 

            Defendant seeks to reopen discovery for the purpose of Plaintiff submitting to a physical examination and to augment Defendant’s expert witness designation to add Steven Dennis, M.D.  (See Declaration of James T. Shott, ¶ 11 , Exhibit F.)   Defendant advances the declaration of James T. Shott (Shott), counsel for Defendant, to establish a factual and legal basis to reopen discovery.  Shott declares in pertinent part as follows:

·       Trial in this matter is currently set for February 8, 2023 and regular discovery closed on January 9, 2023. Attorney Gino Barrica was the sole handling attorney and trial counsel for this matter since its inception.

·       In or around October 2022, Mr. Barrica had a sudden family medical emergency and had to take a leave of absence.

·       In the interim, on November 7, 2022, my office served plaintiff with supplemental discovery to update his prior responses with sufficient time to pursue additional discovery, as needed. A true copy of this discovery is attached as Exhibit A.

·       Plaintiff’s responses to this discovery were due on December 9, 2022, but none were received.

·       When Mr. Barrica returned to work in December2022, he served defendant’s expert designation, stating no experts were being designated at this time, along with a meet and confer letter to plaintiff’s counsel on December 20, 2022, requesting responses to the outstanding discovery by December 30, 2022.  A true copy of defendant’s 2034 designation is attached as Exhibit B, and a true copy of Mr. Barrica’s meet and confer letter is attached as Exhibit C. 

·       No discovery responses were received by December 30, 2022 and Mr. Barrica unexpectedly left the firm as of January 5, 2023.

·       The file was then reassigned to me for handling and in reviewing the file, I discovered that Mr. Barrica inadvertently did not have plaintiff examined by a medical expert and did not designate any experts, and defendant had just missed the deadline to designate a supplemental expert on January 9, 2023.

·       On January 11, 2023, plaintiff finally served his overdue responses on January 11, 2023 and produced an additional 600 pages in medical records. Additionally, plaintiff produced an additional nearly $75,000 in medical bills that were from a letter that was dated December 31, 2022, 11 days before the supplemental discovery responses were served. A true copy of plaintiff’s responses is collectively attached as Exhibit E.

·       While Mr. Barrica had returned to work in December 2022, he was still dealing with other circumstances, one of which included an emergency surgery for his 8 month old son, the other significant issue I can discuss in camera with the Court. With the benefit of hindsight, I belief these circumstances caused or contributed to his inadvertence and/or neglect in completing plaintiff’s IME and designation of a medical expert.

·       Plaintiff here is claiming multiple injuries, including two back surgeries, ongoing back pain despite those surgeries, and over $195,000 in medical specials. At issue in this case is causation of and the nature and extent of his claimed injuries and damages.  Without an IME or medical expert, i.e., Dr. Dennis, to rebut plaintiff’s expert Dr. Fardad Mobin at trial and the completion of expert discovery, defendant will be severely prejudiced and unable to present a complete defense. Thus, given the unique circumstances with Mr. Barrica and the unexpected transfer of this file to me after the discovery cutoff, I believe good cause exists to reopen discovery and allow defendant to examine plaintiff, designate Dr. Dennis, and complete necessary discovery.

(Declaration of James T. Shott, ¶¶ 2-10, 12-13.) 

            In opposition, Plaintiff advances the declaration of Aaron Brown (Brown), counsel for Plaintiff.  Brown declares that, despite Shottt’s statements, Mr. Barrica was continuing to work on the action from October 29, 2022 through December 22, 2022.  (Declaration of Aaron Brown, ¶ 2.)  Brown states that there were written communications, emails and letters, to and from Mr. Barrica during that period of time.  However, Brown does not attach copies of the written communications.  As such, Plaintiff argues that the actions or inactions of Mr. Barrica were not due to mistake, inadvertence, surprise or excusable neglect, and Mr. Barrica made a conscious decision not to retain a health care expert or seek Plaintiff’s physical examination.

            Concerning the purportedly late discovery responses, Brown states:  “Defense counsel’s claim that plaintiff’s responses to supplemental discovery served on 1-11-23 necessitate a trial continuance is not credible. Mr. Barrica granted plaintiff’s counsel an extension, and plaintiff’s counsel served the supplemental discovery responses within the time given to him. Since at least 11-29-21, when plaintiff served initial discovery responses, defendant was aware that plaintiff’s damages included ‘L4-5 laminectomy for decompression (Bilateral) performed on July 19, 2021,’ and over $118,915 in past medical bills. Since at least 6-1-22, plaintiff’s deposition, defendant was aware that plaintiff had a second surgery at Kaiser Permanente.”  (Declaration of Aaron Brown, ¶ 6.)  Similar to the written communications, Brown does not attach any written confirmation of the extension. 

            Here, the Court cannot determine with any certainty that Defendant, through Mr. Barrica, made deliberate decisions not to complete a physical examination of Plaintiff or to retain a health care expert.  Based upon the representations of Shott that Mr. Barrica was experiencing personal issues during a critical point in the litigation and was not tending to cases including this action in the manner that was expected of him, the Court finds that Defendant has established a factual and legal basis to reopen discovery for a limited purpose. 

            In particular, the Court finds that Defendant’s failure to demand Plaintiff’s physical examination and/or designate a health care expert was the result of Mr. Barrica’s mistake, inadvertence or excusable neglect.  Moreover, with the trial set on May 4, 2023, the Court finds that there is ample time to complete the contemplated discovery and Plaintiff has not shown that there will be any prejudice should the court reopen discovery for a limited purpose.  In fact, the Court finds that the reopening of discovery albeit to complete defined tasks adheres to the public policies regarding discovery as noted in Beverly Hospital v. Superior Court and Cottini v. Enloe Medical Center in conjunction with the public policy of trying cases on their merits.  (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“the law favors disposing of cases on their merits”]; McClain v. Kissler (2019) 39 Cal.App.5th 399, 405 [“[t]here is, to be sure, a policy in favor of trying cases on their merits. And it is an important one”].)

2.     EXPERT WITNESS DESIGNATION - AUGMENTATION

Per Code of Civil Procedure section 2034.610, subdivision (a), “On motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to…[a]ugment that party’s expert witness list and declaration by adding the name and address of any expert witness whom that party has subsequently retained.”  (Code Civ. Proc., § 2034.610, subd. (a)(1).)  “Under section 2034.610, the court may permit amendment of an expert witness disclosure, if section 2034.620's conditions stated are met.”   (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 541.)

The court shall grant leave to augment or amend an expert witness list or declaration only if all of the following conditions are satisfied:

(a) The court has taken into account the extent to which the opposing party has relied on the list of expert witnesses.

(b) The court has determined that any party opposing the motion will not be prejudiced in maintaining that party's action or defense on the merits.

(c) The court has determined either of the following:

(1) The moving party would not in the exercise of reasonable diligence have determined to call that expert witness or have decided to offer the different or additional testimony of that expert witness.

(2) The moving party failed to determine to call that expert witness, or to offer the different or additional testimony of that expert witness as a result of mistake, inadvertence, surprise, or excusable neglect, and the moving party has done both of the following:

(A) Sought leave to augment or amend promptly after deciding to call the expert witness or to offer the different or additional testimony.

(B) Promptly thereafter served a copy of the proposed expert witness information concerning the expert or the testimony described in Section 2034.260 on all other parties who have appeared in the action.

(d) Leave to augment or amend is conditioned on the moving party making the expert available immediately for a deposition under Article 3 (commencing with Section 2034.410), and on any other terms as may be just, including, but not limited to, leave to any party opposing the motion to designate additional expert witnesses or to elicit additional opinions from those previously designated, a continuance of the trial for a reasonable period of time, and the awarding of costs and litigation expenses to any party opposing the motion.

(Code Civ. Proc., § 2034.620, subds. (a)-(d).)

            Based upon the record and for the reasons noted above, the Court makes the following findings:

1.     The Court has taken into account Plaintiff’s reliance on Defendant’s initial expert witness designation including Plaintiff’s independent decision to expend $12,750 to have Plaintiff’s expert witness prepare for trial. 

2.     Plaintiff will not suffer any prejudice.

3.     Defendant failed to determine to call an expert witness, i.e., Steven Dennis, M.D., because of Mr. Barrica’s mistake, inadvertence or excusable neglect due to his personal circumstances.

4.     Defendant sought leave to augment the expert witness designation and reopen discovery promptly by filing the motion on January 20, 2023. 

5.     Defendant served a copy of the proposed witness information on Plaintiff through Shott’s meet and confer letter dated January 18, 2023 which is attached as Exhibit F to Shott’s declaration.

Accordingly, the Court will permit Defendant to augment his expert witness designation with Steven Dennis, M.D., provided that Defendant make Dr. Dennis available for deposition on or before April 21, 2023

CONCLUSION AND ORDER

Therefore, Court grants Defendant’s Motion to Reopen Discovery and Augment Expert Designation, and orders discovery reopened for the limited purpose of Plaintiff submitting to a physical examination with Steven Dennis, M.D. which shall be completed on or before April 11, 2023; Defendant serving an augmented expert witness designation on or before March 24, 2023; and the deposition of Steven Dennis, M.D. which shall be completed on or before April 21, 2023. 

Defendant shall give notice of the Court’s orders and file a proof of service of such.